Indian Democracy and Rule of Law

India is considered a well-established democracy. Looking back, it has been a momentous journey  since  Independence in 1947 and adoption of the Constitution on January 26, 1950. Yet, the Indian democracy has not fructified. Its constitutional goals and democratic aspirations remain unrealised.   Even though the Indian democracy has withstood  six decades of social, economic, political challenges, including an 18-month long State of Emergency, the  challenge to its democratic governance persists. Simply put, "The rule of law" does not prevail in India. In fact, threats to the rule of law are relentlessly subverting  Indian democracy and imperilling its system of governance in the country.   It has been proved beyond doubt that social and economic progress achieved by developed democratic societies  is  directly the result of  their vigilant protection  and  enforcement of  the rule of law.   The right to equality before the law, often phrased as 'equal protection of the law', is fundamental to any just and democratic society. Rich or poor, majority or minority, political ally of the State or its opponent—all are entitled to equal protection before the law.   We may argue that life does not treat every one equally and even in the same family each member has a different course of life. However, the State and its systems are the creation of man and not of fate and the State has the responsibility to treat all its citizens equally. According to the constitutional law expert John P. Frank, "Under no circumstances should the State impose additional inequalities; it should be required to deal evenly and equally with all of its people."   In a democratic State, no one is above the law. Democracy is for the people, by the people and of the people, said Abraham Lincoln. The laws in a democratic  State are created in the name of the people by the elected representatives of the people. They are not supposed to be imposed upon them. There is a sound presumption that citizens of a democracy submit to their  laws because they know that they are submitting to themselves, however indirectly, as makers of laws. Once the laws have been made and the people obey them, both law and democracy prevail.   The history of every society shows that the power-holders tend to get corrupt and tyrannical. In a demo-cracy, those  who administer the criminal justice system  hold great power and the potential for its abuse is inevitably there. The State power is exercised to imprison, seize property, torture, exile and execute individuals without legal justification—and even without any formal charges being brought. A democratic society that tolerates such abuses faces the peril of curtailing its democracy and even losing it.   No State can exist without having the power to maintain order and punish criminal acts. Democratic States too must have the power to punish the wrong-doers but the rules and procedures by which the State enforces its laws must be explicit, transparent and open to the public view. Yet, no democratic State is free from secret, arbitrary and manipulative power and political trickery.   There are essential requirements of due process of law in a democracy that may be briefly described as follows:   [1] No one's home can be broken into and searched by the police without a court order showing that there is good cause for such a search. The midnight knock of the secret police is repugnant to democracy.   [2] No person can be arrested without manifest, written charges that specify the alleged violation. The accused are entitled to know the exact nature of the charge against them and must be released at once under the doctrine known as habeas corpus, if the court finds the charge and arrest invalid.   [3] Persons charged with offence should not be held for protracted periods in prison. They must have the right to a speedy public trial, and to cross-examine their accusers.   [4] The authorities must grant bail, or conditional release, to the accused pending trial, if there is little likelihood of the suspect to flee or commit other crimes. "Cruel and unusual" punishment, as determined by the traditions and laws of the society,  such as  community panchayat's punishing members of their community for violation of their customs, must be prohibited.   [5] Persons must not be compelled to be witnesses against themselves. This prohibition  must be absolute and  the police must not use torture or physical or psychological abuse against suspects. A legal system that bans forced confessions stops the police from using torture, threats, or other forms of abuse to obtain information because the court will not allow such information as evidence during trial.   [6] No person shall  be subject to double jeopardy; that is, no one be charged with the same offence twice.   [7] The so-called ex post facto laws are also proscribed. These are laws made after the fact so that someone can be charged with an offence even though the act was not illegal at the time it was committed.   [8] Defendants should have access to additional protections against coercive acts by the State.  For example, in the United States the accused have a right to a lawyer who represents them at all stages of a criminal proceeding, even if the accused  is not able to pay for such legal service. The police must inform suspects of their rights at the time of their arrest, including the right to have a lawyer and the right to remain silent for  avoiding being witness against themselves.   Though efforts have been made to enforce and institutionalise the rule of law in India they have not achieved the intended results. We cannot say that the normative framework of constitutional governance does not exist in the country. This has been provided by India's Constitution and many institutions have also been established under it. However, no deep values have been ingrained, nor unassailable principles, as directed by the Constitution, are being practiced by India's institutions. As a result, the Indian society is bereft of the benefits of constitutionalism.   Six decades of governance should have been long enough for a country like India with a very long tradition of Satyamev Jayate to develop institutions whose working would reflect both inherited and acquired values of enlightenment and rational social and political conduct. All that our institutions have done is to rouse high social expectations with a modicum of their fulfilment. The abuse of power has, in fact, become a universal phenomenon.   The Indian judiciary enjoys good reputation both nationally and internationally for its progressive interpretation of various provisions of the Constitution that has helped promote the cause of social justice.  Judicial interpretations have expanded  the scope  of our fundamental rights as enshrined in the Constitution. Higher Judiciary has also helped overcome restrictions on rules relating to locus standi and created new avenues for seeking remedies for violation of human rights. It has  allowed public interest litigation petitions and  genuinely intervened in the areas of child labour, bonded labour, clean and healthy environment, and women's rights, to cite a few instances of judicial intervention. Such judicial interventions on behalf of human rights have been successful in upholding the rule of law.   But, in view of the vast and unmitigated violations  of justice, these judicial achievements simply pale into insignificance. The scale of prevailing inequalities and violations of human and fundamental rights have made the Indian democratic State look like a despotic dispensation. Enforcing the rule of law itself remains a fundamental challenge, leave aside other innumerable crises of the Indian legal system. We do have the laws, but no implementation of these laws; we have a vast body of rules that are followed more in their violation than in their observation.   The behaviour of those who govern is highly reprehensible. They have no respect for the laws of the land. Citizens too have ceased to care for the laws and be law-abiding. This lack of respect for laws by the government and the people at large is becoming a most serious threat to Indian democracy. The Indian people are fast losing trust and faith in the democratic institutions.   Passing more laws and establishing more institutions is causing what appears to be an organized confusion in the legal system of the country. Plethora of laws and increasing number of Tribunals, Rights Commissions and Forums are only increasing the role and size of the insensitive bureaucracy in the system of governance. They are creating and perpetuating an unjust  society that the people now accept as a fact to live with. There is need for a fundamental re-examination of the approaches that have been adopted to enforce the rule of law and critically examine the effectiveness of Indian democracy.   A report of the National Commission to Review the Working of the Constitution in India noted: "The paradox of India, however, is that in spite of a vigilant press and public opinion, the level of corruption is exceptionally high. This may be attributed to the utter insensitivity, lack of shame and the absence of any sense of public morality among the bribe-takers. Indeed, they wear their badge of corruption and shamelessness with equal élan and brazenness."   In the last decade there has been an expansion of legal education. Innumerable law schools and universities have come up but the ethical standards in the legal profession have sunk very low. Both judges and advocates now indulge in corrupt practices. The law itself favours the criminals; complainants and witnesses suffer the most in the crowded courts and through interminable trials. Adjournments have become a bane of almost every court, highest and lowest in the  whole country. Neither the judges nor the successful lawyers now inspire the youth. They have created an unbridgeable gap between the law as it obtains in the books and the law as it is actually practiced in the courts of diverse description.   Democracy and the rule of law are inextricably connected. Urgent steps are needed to establish a rule of law society in India or else our credibility as a democracy will get destroyed.

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with warm regards

Harish Sati
Indira Gandhi National Open University (IGNOU)
Maidan Garhi, New Delhi-110068

(M) + 91 - 9990646343 | (E-mail) Harish.sati@gmail.com


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